Question: What is the evidentiary standard for showing “wanton misconduct”?
Answer: Evidence that the person was conscious of their conduct with the knowledge of existing conditions that injury would probably result. See below.
‘Every tub must set on its own bottom.’ In other words, each case involving willful or wanton misconduct must be decided and must turn on the circumstances as shown by the evidence to be particularly peculiar or unique to the case. Every act entering into the particular transaction must be considered and weighed in connection with all the other circumstances.
The burden of proof of wanton misconduct is to show by a preponderance of the evidence that the person was conscious of their conduct with the knowledge of existing conditions that injury would probably result, and with reckless indifference to consequences, they consciously and intentionally did some wrongful act of omitted some duty which produced the injuries.
Because of the difficulty of defining with precision the terms wanton misconduct for which someone is liable, in determining whether particular conduct falls within such terms each case must be decided on the circumstances peculiar to it; every act or omission entering into the particular happening must be considered and weighed in connection with all the other circumstances, and in arriving a such decision the consequences of one’s conduct as well as the conduct itself may be determining factors.